Kanhaiya Prasad vs State of Jharkhand and Others

This appeal has been preferred against the order dated 13.05.2009 passed by the learned Single Judge in W.P.(S) No. 4615/2007 by which the learned Single Judge had been pleased to dismiss the writ petition holding therein that the petitioner''s services which he had rendered in the office of the Accountant General, Bihar, Patna from 03.11.1969 to 01.02.1972 i.e. prior to joining a new service in Finance(Commercial Taxes) Department of the State of Bihar shall not be counted for the purpose of pensionary benefit. The learned Single Judge was pleased to reject the writ petition relying on Rule 101(a) of the Bihar Pension Rules which is also applicable on the Finance(Commercial Taxes) Department of the State Government and the said Rule clearly envisages that the resignation of the public servant or dismissal or removal and certain other circumstances which is not relevant for the purpose of resolving this controversy would entail forfeiture of past service.

The petitioner/appellant herein admittedly resigned from the services of the Accountant General, Bihar, Patna and the said resignation was without the approval of the competent authority. The learned Single Judge, therefore, held that the petitioner/appellant herein having resigned without approval, his services which he had rendered in the office of the Accountant General, Bihar, Patna should not be counted for the purpose of pension as it is barred by the said Rule.

To explain the controversy it may be relevant to state that the appellant had initially joined service in the office of the Accountant General in Bihar, Patna and after three years of service he has resigned from the same and pursuant to the fresh advertisement joined the Finance(Commercial Taxes) Department, Government of Bihar at Patna where he has completed 20 years of service and is availing pensionary benefit for the services rendered by him in the Finance(Commercial Taxes) Department of the State Government. The appellant has further claimed that his pension should be revised and he should be entitled to be counted his past service which he had rendered in the office of Accountant General, Bihar, Patna which has been rejected by the learned Single Judge, as already indicated hereinbefore.

Counsel for the appellant, however, assailed the judgment of the learned Single Judge and submitted that the petitioner/appellant herein has applied for job in the department of Finance(Commercial Taxes) Department with the approval of the competent authority in the office of Accountant General, Bihar at Patna. As his application had been approved he would be protected by Rule 101(b) of the Bihar Pension Rules which states that if the resignation is with the approval of the competent authority then the past service which had rendered in the office of Accountant General, Bihar, Patna would not be liable to be forfeited. However, the Counsel is completely missing infirmity in his argument as the Rule 101(b) does not indicate or mention protection of service for forfeiture if the application seeking new appointment is submitted with the approval of the competent authority. The relevant contention is with regard to the forfeiture of service.

If the resignation had not been submitted with the approval of the competent authority, it entails consequence of the forfeiture of past service which he has rendered. The petitioner/appellant herein admittedly tendered his resignation without the approval of the competent authority and, therefore, his case will be covered by Rule 101(a) and not by Rule 101(b) of the Bihar Pension Rules since his case is governed by Rule 101(a) which lays down as follows:

101(a) Resignation of the public service or dismissal or removal from it for misconduct, insolvency, inefficiency not due to age, or failure to pass prescribed examination entails forfeiture of past service.

The view taken by the learned Single Judge is perfectly correct in which we find no infirmity. The appellant having resigned the previous service without the approval of the authority and thus, his case falling under Rule 101(a) of the Bihar Pension Rules, his claim for counting his past service rendered with the previous employer cannot be counted for the purpose of pension so as to claim enhanced pension.

Consequently, this appeal is dismissed. However, there shall be no order as to costs.